The Press from New Zealand (Press.com.nz) is publishing a series of articles on employment discrimination, and its leadoff article is about what we have called “lookism,” appearance bias or beauty bias. It features two young women who are overweight, sport tattoos and wildly colored hair — and who cannot find a job.
One woman said that employers are “enthusiastic” until they meet her — “as soon as they see me in person, it all goes downhill.” She has been rejected for hiring 20 times in the last 2 months.
Is this legal in New Zealand? In the US?
What Is Beauty Bias?
We have written a lot about what some call “beauty bias” – workplace bias based upon appearance. Obesity bias seems to be the most frequently observed manifestation of this. See our previous posts on lookism, appearance or beauty bias, and weight and height discrimination: October 16, 2013; July 9, 2012; February 11, 2011).
A report a couple years ago about the EEOC investigation of a popular chain of Massachusetts coffee shops known as “Marylou’s Coffee” brought out a slew of punditry, most of it attacking the EEOC for allegedly “harassing” the chain about what the EEOC considers its alleged policy of only hiring attractive servers.
Beauty Bias: Does It Affect Earnings ?
Studies and research in this area (check out the seminal work of law professor Deborah Rhode and economist Daniel Hamermesh) clearly demonstrate a beauty bias in the workplace. Hamermesh calculates that a good-looking man will earn, over his career, about $250,000 more than his least-attractive counterpart.
See also a paper with a useful bibliography by Hofstra Professor Comila Shahani-Denning, entitled “Physical Attractiveness Bias in Hiring: What Is Beautiful Is Good.”
Professor Rhode reports that about 60 percent of overweight women and 40 percent of overweight men report experiences of employment discrimination, and that short males often get “the short end of the stick” when it comes to hiring, promotion and earnings. Moreover, Newsweek Magazine reports that “handsome men earn, on average, 5 percent more than their less-attractive counterparts (good-looking women earn 4 percent more).”
Time published an article recently entitled “People Who Were Pretty In High School Make More Money Because Life Isn’t Fair,” and begins: “A new research paper confirms that everything that your mother told you growing up is a lie because the pretty people always win.” The article links to a report from the Council for Contemporary Families which claims, as Time puts it: “Women with above average looks reportedly made 8% more while below-average looking women had a 4% penalization. While an attractive man earned just 4% more, men who fell below average on the looks scale were docked 13%.”
Beauty Bias Survey: Some Eye-Opening Results
Moreover, a phone survey of 756 women between the ages of 18 and 64 by the American Society of Plastic Surgeons, reveals that:
— “13 percent (more than 1 out of 10 of the 115-million working-age women) say they would consider having a cosmetic medical procedure specifically to make them more confident and more competitive in the job market.
— An astounding 3 percent (nearly 3.5-million working women) say they’ve already had a cosmetic procedure to increase their perceived value in the workplace.
– 73 percent (almost three out of four or, 84-million working women) believe, particularly in these challenging economic times, appearance and youthful looks play a part in getting hired, getting a promotion, or getting new clients.
– 80 percent (four out of five or 92-million working women) think having cosmetic medical procedures can boost a person’s confidence.”
Well, Is It Legal?
Getting back to New Zealand, a local lawyer was quoted in the article as saying that “Employers can discriminate on weight, colour of hair and visibility of tattoos.” This is generally true in the US. Our New Zealand colleague noted that discrimination based on weight could be considered a cultural or a health issue – which we have also noted when it comes to morbid obesity and the ADA.
When it comes to “cultural tattoos” our New Zealand colleague referred to a woman who had a traditional Maori tattoo on her arm and was not hired — this was held to be discrimination. We have noted this too — and have written a lot about religious tattoos, hairstyles, beards, body piercings, and other bodily adornments.
We wrote in 2012 that Title VII does not prohibit dress or grooming rules per se, but that such rules may run afoul of Title VII if they have a disparate impact on, for example, employees who have religious beliefs which require a certain dress or hair style. With regard to hair styling in particular, we quoted a Missouri Department of Labor spokeswoman:
“An employer may condition a job on an employee’s compliance with the employer’s hair styling preferences, unless the employee’s alternative hair styling preference is connected with the employee’s inclusion in a protected category. For example, a particular hair style may be a tenet of the employee’s religion, or the employer may decline to hire a prospective employee because the employee is considered to be disabled because of his or her hair style (such as believing someone without hair to be suffering from cancer).”
We reported on December 23, 2013 of a Muslim employee of a Fresno McDonald’s who requested a religious accommodation: the right to grow a beard in accordance with his religious beliefs. His request was refused and he was fired, the EEOC sued, and The Fresno Bee reported that McDonald’s agreed to settle for $50,000 and other relief. The EEOC said that “Workers have the right to request an accommodation which would allow them to work while still practicing their religious beliefs. Employers must consider such requests and ensure that no negative actions are taken against workers who exercise this right.”